The opinions are out, and they are extremely interesting. (One gets the impression that some of this material was drafted last year for Fischer and left on the cutting room floor.)

The most eye-catching part to me is Justice Scalia's dismissal of Footnote Four of Carolene Products. In his concurrence, he says the following (internal citations omitted):

"The dissent trots out the old saw, derived from dictum in a footnote, that legislation motivated by 'prejudice against discrete and insular minorities' merits 'more exacting judicial scrutiny.' I say derived from that dictum (expressed by the four-member majority of a seven-Justice Court) because the dictum itself merely said "[n]or need we enquire . . . whether prejudice against discrete and insular minorities may be a special condition." After some additional discussion, Justice Scalia concludes this section with: "[W]e should not design our jurisprudence to conform to dictum in a footnote in a four-Justice opinion."

The footnote was but the seeds of modern day equal protection law, including determining the levels of scrutiny required. If Scalia wants to toss out the bathwater, fine, but let's be clear on how much water.

The case itself it notable in that -- just like Fisher v. Texas -- there was a big assumption that a broad based change in race conscious admissions law would be upon us. This time esp. it was thought that would occur since the Court particularly took this case after punting the last time.

Not really. It narrowly applied political process precedents they only applied a few times anyway (the litigants in Romer, e.g., relied on it, but they decided it on other grounds). The justices overall even seemed to agree that the appellate court wasn't totally wrong -- they applied precedent, but the plurality decided the precedent itself was too broadly phrased.

Sotomayor's dissent has some real power, but ultimately her fellow travelers have a reason to say "whew."

The most eye-catching thing in the majority opinion is that Justice Kennedy thinks that the fact that this was a referendum is somehow relevant. What matters is what the law SAYS, NOT WHO passed it.If the state is obligated to provide equal protection of the laws then the FIRST question is whether the law that Michigan's voters have passed does, or does not, do that.That Kennedy was allowed to get away with obscuring that -- and, indeed, to damage the power of the court in general to declare anything unconstitutional in general, is simply breathtaking. Even conservative justices would not be expected to do so much damage to the authority of their own institution and the very concept of judicial review.

I take comfort in the fact that this court's blatant disregard of precedent will make discarding such obviously false rulings as this one easier in the future, even if I don't live to see it (I am 54).

"It narrowly applied political process precedents they only applied a few times anyway"?How RIDICULOUS. There is never a precedent for ratifying ANY process for enacting a law that is contrary to the constitution itself.

"The justices overall even seemed to agree that the appellate court wasn't totally wrong -- they applied precedent, but the plurality decided the precedent itself was too broadly phrased."

In other words, they overturned the precedent BY NARROWING IT. In other words, they ignored precedent in order to do something not only bigoted, but completely contrary to the whole notion of judicial review in general. It is even LESS possible to privilege process over outcome IN ANY CONSTITUTIONAL QUESTION *than* it is to do that in any question about discrimination.

OK, I was wrong, it was the 6th circuit itself that decided to make the issue about process/referendum. But surely the argument there is that given that the party seeking relief is numerically both a minority and despised, it cannot possibly be equally protected by a referendum process. I am honestly surprised that the 6th itself chose to dilute the issue. Perhaps they thought it would be much more abundantly clear that an unpopular minority could not be equally protected by a majoritarian democratic process -- clearer than that it was not being equally protected by the "equal" application of "objective" admissions criteria

Given that this is a state institution in a state where graduation rates from public schools also exhibit wide racial disparities, I am waiting for the suit that alleges that the Michigan is not granting equal protection to its high school students, because of THOSE disparities. ANY court that took THAT fact seriously would wind up ordering affirmative action in the next level of education (collegiate admissions) as the first and smallest of remedies for the racism endemic to Michigan's public K-12 system.

Kennedy, here thinking that is perfectly OK that "Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. THIS IS *INSANE*. If you are ON THE SUPREME COURT, you are NOT listening to the unwashed masses in order to figure out what the constitution means! You are *TELLING*, NOT ASKING! It is YOUR JOB to KNOW what it means, NOT "to continue to learn, to listen, and to remain open to new approaches"!! Kennedy himself WAS COMPLETELY UNwilling to do that on the subject of gay marriage last year! ANY time you decide ANY equal protection question in favor of a group of people needing but not getting equal protection, you are DENYING the relevance of debate and discussion! The 14th amendment says that no state shall deny to any person under its jurisdiction the equal protection of the laws. That prohibition applies to any and all such denial REGARDLESS OF PROCESS, except where the process itself exacerbates the denial, which a referendum usually will since it is usually unpopular minorities that are being denied equal protection. Even Breyer thought the procedural questions here could be distinguished from the cases on which the 6th circuit's political process argument relied, but there simply has to be a prior question. THIS COURT IS NOTORIOUS (see Citizens United) for insisting that it would rather hear some deeper dispositive question than the one actually put to it. I obviously wouldn't've liked the outcome on "the prior question" any better, but that would've had an honesty that this blatantly lacks.

“The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits.”

seems to need context that he does not provide. The role of the 14th Amendment in Constitutional Law surely is not reduced to this simple sentence, especially without context. The 14A section on Congress's powers to enforce the 14A seems to clash a tad with "barely permits."

The argument that a law requiring government to apply the law equally is in any way a violation of the constitution's guarantee that we all enjoy equal protection of the law is an unvarnished assault on reason.

This court should have issued a one page per curium opinion reversing the circuit stating little more than that.

Frankly, the dissent is Exhibit A in support of an constitutional amendment allowing Congress to impeach federal judges for refusing to enforce the law.

Colleges and universities must be free to prioritize the goal of diversity. They must be free to immerse their students in a multiracial environment that fosters frequent and meaningful interactions with students of other races, and thereby pushes such students to transcend any assumptions they may hold on the basis of skin color. Without race-sensitive admissions policies, this might well be impossible. The statistics I have described make that fact glaringly obvious. We should not turn a blind eye to something we cannot help but see.

There is continuing discrimination in society along with an overall need in a college to bring forth various points of view and types of people that provides a need (at least to give the people at the colleges elected by the people at large the option w/o singling out a certain class of people from not receiving such "preferences" which again is but one part of many ways used to make decisions in colleges).

It is like pointing to "preferences" for vets w/o noting WHY they are giving it, including how they earn the points and at times also have to struggle with discrimination (e.g., disabled vets).

As to george's comment, there is a limited satisfaction that Kennedy still accepts that such concerns does allow educational choices that take into consideration the realities of life, including taking into consideration of race or whatever when making decisions to deal with inequalities and needs.

To forestall confusion, the issue was if the "political process" principle allowed the particular means used to choose this policy, not if the policy itself was legitimate. The Court in effect overruled past law to some extent in saying it was allowed.

The merits of the question of affirmative action was specifically not decided (though it was addressed to some degree), the usage of it in various respects as allowed by past cases continues to be good law.

The provision in question does not "mandate equal treatment," does it? It specifically singles out certain people. As applied to them, college administrators cannot take into consideration needs as I cited. Others? They can.

It is not 'shameless' particularly but it is a form of missing the point to ignore this. The provision is not "no preference." It singles out certain people. This is a curious definition of "equal" in my book. The 14A is general in its language.

Joe: "The provision in question does not "mandate equal treatment," does it?"

The language is pretty categorical:

The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

"The state shall not discriminate against, or grant preferential treatment to, any individual or group in the operation of public employment, public education, or public contracting."

This would be akin to the 'any person' rule of the 14A. The 15A and 19A singles out certain classes. The relevant part of the 14A here does not. It says "any person." The provision here doesn't do that. It singles out certain classes of persons.

To forestall confusion, merely supporting various types of affirmative action plans is not in itself the "discrimination" banned by the 14A. At least, not a single justice thinks that in all cases.

Nor is just exactly what equal protection of the law means easy. Various 'preferences' are allowed and always were w/o the rule being violated. Simply appealing to the text ala Scalia or Brett isn't enough. After talking about 'shame' etc., eventually, Brett et. al. show this by debating specific arguments. More usefully.

Well, come on, this is Michigan we're talking about. Discrimination on on the basis of sexual orientation is still the official state policy. Schuette has his name on that case also, this time on the pro-discrimination side.

It is argued that the 14th amendment "permits", or "allows" affirmative action. But, in order for the Michigan Civil Rights Amendment to be unconstitutional, the 14th amendment would have to "require" affirmative action, not merely permit it. Governments are allowed all the time to foreswear acts which it would be constitutonal for them to engage in.

This is no different from a state amending it's constitution to prohibit eminent domain. Just because something is constitutional, doesn't mean the government has to do it.

Joe said..."Categorical would be this: "The state shall not discriminate against, or grant preferential treatment to, any individual or group in the operation of public employment, public education, or public contracting."

Because of all the previous games progressives have played (and continue to play in the dissent) with the term "equal" in the equal protection clause, the authors of this initiative had to spell out the forbidden categories of discrimination.

"Governments are allowed all the time to foreswear acts which it would be constitutonal for them to engage in."

No, this is wrong. The 14th A expressly prohibits states from denying to any person the equal protection of the laws. If the equal protection of the laws requires state action (say, to punish lynching), then the state can't forswear such a law.

You're refusing to draw a very important distinction: Between things which are constitutionally permitted, and things which are constitutionally mandated.

As I said, states are constitutionally permitted to utilize eminent domain. But a state could amend it's constitution to prohibit the use of eminent domain, and the fact that it was constitutional would not conflict with this.

The Supreme court has ruled racial preferences constitutionally permitted, it has not ruled them constitutionally mandated, and short of that, there's no constitutional problem with the Michigan amendment.

And that's what the Ninth circuit was pointing out: That racial preferences were, just barely, tolerated under the 14th amendment. They are not mandated.

"That racial preferences were, just barely, tolerated under the 14th amendment. They are not mandated."

was the basis for Plessy v. Ferguson, a decision in the era of the Gilded Age. Alas, perhaps to Brett's chagrin, along came Brown v. Bd. of Educ. in 1954, followed by various Civil Rights Acts in the 1960s. So maybe this recent decision is more evidence that the Roberts Court is accommodating a Second Gilded Age.

Race-based affirmative action programs are sometimes permitted as a remedy for past racial discrimination that violated federal law. See e.g. United States v. Paradise, 480 U.S. 149 (1987) Proposal 2 does not, and indeed could not, restrict what remedies a state court may impose against Michigan or its subdivisions for federal law violations. The question of what remedies (including race-based remedies) a state court may prescribe for violations of federal law is purely a question of federal law, a question to which the U.S. Supreme Court reserves the final word. Thus, if a state university in Michigan engaged in federally unlawful discrimination against, for example, Ukrainians, Proposal2 would not stop a state court from requiring pro-Ukrainian affirmative action as a remedy for such discrimination.

Another observation is that the Court restricted the Hunter/Seattle doctrine to laws that prohibit or discourage racial discrimination. Expanding Hunter/Seattle to laws against racial discrimination would yield results that would actually embed discrimination. For example, if a state were to pass laws forbidding racial segregation in public transportation, it would restructure the political process against those who favor racial segregation in public transportation (Brown v. Board of Education, 347 U.S. 483 (1954) does not generally apply to public transportation, so the federal constitutionality of racially segregated public transportation is controlled by Plessy v. Ferguson, 163 U.S. 537 (1896)) Thus, segregationists must appeal to the state legislature, or even the state’s constitutional amendment process, to enact racial segregation in public transportation. (This is likely the case in Michigan, as its constitution’s equal protection clause post-dates Brown.) Under the Sixth Circuit’s application of Hunter/Seattle, such a law violates the equal protection guarantees of segregationists. today’s ruling forecloses such a challenge.

I think what we're seeing here, is that the era of governmentally sanctioned racial discrimination is finally, at long last, drawing to a close. Those whose political fortunes are built on supplying racial spoils are screaming like stuck pigs, but it's the only way this continually picked at wound will ever heal.

A generation from now, our nation's long nightmare of racism may finally be over. Much to the horror of the Democratic party, which has been the chief purveyor and beneficiary of that discrimination for most of our nation's history.

Brett seems to think that the Republican Party of today is representative of the Republican Party since it first surfaced with strength back in the late 1850s and that the Democratic Party of today is representative of the Democratic Party going back to Andrew Jackson. Is today's Republican Party truly the party of Lincoln? Or did a change take place post Brown v. Bd. of Educ. in 1954 plus the 1960s Civil Rights Acts, resulting in Nixon's Southern Strategy in the 1968 campaign? Over history, there is plenty of blame to be spread for the evils of slavery and Jim Crow following the Civil War. Remants of these evils still linger. I hope that racism will no longer be an issue in another generation as Brett predicts. But please Brett, learn a tad more about history.

"You're refusing to draw a very important distinction: Between things which are constitutionally permitted, and things which are constitutionally mandated."

As Shag points out, that's an argument for Plessy.

If the existing laws don't protect people equally, then a new law becomes constitutionally mandated.

Personally, I'm hopeful that 50 years or more of racism by the Republican party is drawing to a close. But I expect that the racists on the Court will try to stall that day as long as they can, and of course racism will always appeal to some in the R coalition.

As far as I can see, the Democratic party switched from offering racial spoils to whites, to offering racial spoils to blacks, without ever pausing to just not be racist.

To be fair, it was an easy mistake to make. Generations of Democrats profiting off stoking racial tensions, and offering to clients governmentally mandated racial discrimination, met the new imperative to not treat blacks in an evil manner, and arrived at a compromise:

Be racist in favor of blacks, and adopt them as the new client.

It was easy to justify in the beginning, because the new client had real grevances. The problem is, you settled into this model, and it wasn't sustainable, because the grevances that justified it are history, and the people who pay for your racial spoils today aren't guilty of anythine, and aren't willing to continue paying for things they didn't do.

Mock it as simple if you like, but it really is true: The way to stop discrimination, is by stopping discrimination. Not by making discrimination in the opposite direction a perpetual entitlement.

Brett is correct that the Democrats - both the ante-bellum and progressive variety - have been racists for nearly two centuries and imposed government racial discrimination programs from slavery to Jim Crow to the current regimes of racial preferences.

The GOP was formed to free the slaves, enacted the Civil War Amendments, cast the votes to pass the 1960s civil rights laws (although some correctly opposed elements of those laws as unconstitutional), and currently are the folks seeking to enact laws like the MI initiative to finally outlaw government racial discrimination once and for all.

For some reason our commenter from the Mile High State (of mind) ignores the Nixon GOP Southern Strategy beginning with the 1968 election that continues to this date. (See GA Happy Hour Gun Law.)

And perhaps the haze is so think from CO's recreational Ganja, that our commenter ignores the strong Democratic support, pulling in some moderate Republicans in recognition of long denied justice and decency. But where are those moderate Republicans now?

"That racial preferences were, just barely, tolerated under the 14th amendment. They are not mandated."

I don't know how it was "barely" tolerated though as Sotomayor notes at one point, language here is open to confusion -- "preferences" brings to mind a patient getting "preference" because s/he is sicker. Or, is this equal treatment by need?

Mark Field does flag that if something is necessary for equal protection -- and that is ultimately a honest accounting of Sotomayor's dissent though it again is not this case -- denying it is a problem.

Still, this case specifically IS NOT ABOUT THAT. It is about the process used to provide for the policy in question. It is basically the difference between legislators in Hawaii having the discretion not to recognize same sex marriage and singling out same sex couples via a state amendment from not being able to convince legislators to choose that path.

Brett's comment simply confuses the question by focusing on the substantive question and talking past the political process argument that is the basis of the case. So, more talking past each other while tossing in things like this:

As far as I can see, the Democratic party switched from offering racial spoils to whites, to offering racial spoils to blacks, without ever pausing to just not be racist.

The "spoils" here is doing what has been done since the beginning -- trying to provide for a diverse community (e.g., by states, not mere ability, at West Point) while addressing the needs of specific people and groups. Like LBJ noted, chain a person and let him go, don't claim "equal treatment" by treating person as if the person never chained or having the weight of the chains on them is in the same position since both NOW are not chained.

"The "spoils" here is doing what has been done since the beginning -- trying to provide for a diverse community (e.g., by states, not mere ability, at West Point) while addressing the needs of specific people and groups. "

By discriminating against innocent people on the basis of their race. You can't seem to accept that you're not entitled to do anything you feel like, to address even real problems. The eggs you break to make your omlette are people, too, with rights.

The Civil War Amendments could not ipso facto cure the evils of slavery for its subjects. The strategies of the former Confederate States focused on ways around the Amendments, resulting in Jim Crow. Then came Brown v. Bd. of Educ. in 1954, more than 80 years after the Amendments. Again the former Confederate States strongly resisted Brown and then strongly resisted the 1960s Civil Rights Acts that followed.

Brown and the Civil Rights Acts could not ipso facto eliminate Jim Crow. Brett could care less about the innocents who had hoped and expected that the Amendments would improve their lot. But Jim Crow was too powerful.

Brett's innocents post Brown and the Civil Rights Acts seem to consist of whites. Trying to level the playing field was strongly resisted by the former Confederate States.

Now we have the changing demographics which together with Brown and the Civil Rights Acts seem to create for Brett his current innocents, to wit, whites.

There was no carte blanche resulting from the Civil War Amendments. There was no carte blanche resulting from Brown and the Civil Rights Acts of the 1960s.

But let's hope that Brett's predication of racism ending in a generation is correct. Wouldn't that be nice, including for Brett's pre-teen mixed race son?

It took awhile but Brett gets back to his philosophy on racism: "I and other whites of today are innocents as we are not to blame for the evils of slavery and Jim those those who did suffer Crow. So giving any advantage to the current heirs suffering from the evils of slavery and Jim Crow discriminates against innocents such as me."

When the changing demographics become more established, Brett's fear may be retaliation, which may explain why Brett is an anarcho libertarian. Consider how the former Confederate States retaliated with Jim Crow following the Civil War Amendments and again retaliated following Brown v. Bd. of Educ. and the 1960s Civil Rights Act. But sometimes the past is not forgotten by Brett's innocents when it's to their advantage.\

That's right, I'm as innocent of racism, as any random black chosen to be lynched is innocent of whatever the lynching is about.

Some of the wisest words ever to be spoken by a philosopher were Nietzsche's aphorism, "He who hunts dragons must beware, lest he become a dragon himself." The civil rights movement is awash in dragons, people who've become the evil they fought.

And naturally, they think everybody resisting them is the dragon, a justified target for flaming breath, and sharpened talons.

About time this nonsense came to a stop. and it IS going to come to a stop, no matter how much you rage about it.

'Props' to Joe for his efforts to steer the conversation back to what the case was about: not whether racial preferences are good or moral or whether it is forbidden or allowed, but rather whether they can be singled out among other types of preferences and banned by a Constitutional amendment.

"the Democrats - both the ante-bellum and progressive variety - have been racists for nearly two centuries"

This is a quite silly game, to take some historical position of a party to tar the current party, because parties change. Would pointing to the long history of GOP support for protectionism demonstrate that Republicans today oppose free trade? Of course it would not. The Democrats were the party of slavery and Jim Crow, but the split that could be found near the end of the New Deal over race (demonstrated clearly by the three way race of Democrats for President in 1948) led to the pro-Civil Rights position becoming controlling by the 1960's.

I'd give him props, if his effort weren't dependent on the assumption that racial preferences were constitutionally mandated, rather than just permissible. As I say, state governments can forswear powers the Supreme court rules constitutional to exercise, and that's all that happened in Michigan: The Supreme court ruled that the state colleges "could" use racial preferences, and the voters of Michigan decided that, regardless, they would not.

Mark Field does flag that if something is necessary for equal protection -- and that is ultimately a honest accounting of Sotomayor's dissent though it again is not this case -- denying it is a problem. The issue here is not affirmative action as a remedy for past unlawful racial discrimination. Nothing in Schuette suggests that courts can not (subject to strict scrutiny) mandate affirmative action as a remedy for racial discrimination that violates federal law.

These universities, however, are using affirmative action to obtain diversity. The state of Michigan put an end to that.

And that's why I'm expecting racial preferences to be gone entirely within a generation. Grutter will be over-ruled soon enough, when the Court decides that nothing short of reparations to actual victims can justify subjecting everybody else to the downside of racially discriminatory rules. And actual victims are running out, as the Jim Crow era recedes into the past.

Eventually even racial discrimination as a remedy will be rejected. They've only held on as long as they have because the people who favor them are entrenched in positions of power.

I'd give him props, if his effort weren't dependent on the assumption that racial preferences were constitutionally mandated, rather than just permissible.

I said that Sotomayor's dissent as a whole sends that message. But, the "effort" isn't "dependent" on it.

Thus, to repeat myself, it is the difference between Hawaii having the power to deny SSM as compared to singling out one group of people by sex in a state amendment from having the power to convince them one way or the other.

We can go further and say that on the merits SSM is necessary for equal protection. I think so. But, that isn't this case. This case is a political process case. The necessity of AA would help. But, it is not "dependent."

By discriminating against innocent people on the basis of their race. You can't seem to accept that you're not entitled to do anything you feel like, to address even real problems. The eggs you break to make your omlette are people, too, with rights.

The argument is certain things are necessary and overall on balance allowed not that "anything you feel like" is allowed.

I remain of the opinion that the harm to innocent people argument here is not convincing, specifically in this context. It did not violate rights to choose by states, not mere ability, to determine who would enter West Point in 1830. Choosing who to enter a college involves weighing various factors. To take but one thing here.

That is what is done -- not "anything they feel like" -- the Supreme Court the other day yet again left in place the ability of colleges to use race as a factor. This is not "anything." The problem here is that normal political processes will not determine need here, at least for specific groups of people.

It is STILL not clear why singling out certain groups of people from obtaining change in the political process is considered by Brett "equal protection." I provided a neutral no preference type of law that would be a different case.

As to "innocents," in 1865, some resident of NYC probably had little direct involvement in slavery but race conscious programs that might in some fashion benefit blacks particularly in lieu of whites in some limited fashion was allowed.

TODAY a range of problems exist in society, a society made of us all, including racial in nature. We all have a responsibility as part of society to work together and do things that in some way might result in us not getting something we might otherwise get. No person is an island.

Brett and others might not like our society or system. But, it is the system we have. Finally, the overall "innocence" of people often is a tad overblown. I'm sure, to take a clearer case, people in 1950 felt nice and innocent as segregation went on. They had no direct part etc. So, why should we be burdened?

But, they were part of the problem & repeatedly we are too. Brett very well might be some special snowflake here, sorry if that is snide, but I have my doubts as a whole.

As to "innocents," in 1865, some resident of NYC probably had little direct involvement in slavery but race conscious programs that might in some fashion benefit blacks particularly in lieu of whites in some limited fashion was allowed.

I note that neither Brett nor anyone else on his side has attempted to make any originalist argument against AA.

The problem, Joe, is that these universities used AA for the purposes of obtaining a diverse student body. None of them even suggested that they needed to remedy their past unlawful discrimination.

I have my doubts "none even suggested" the point. We also are talking about reality here, not what meets current court doctrine. Finally, diversity is important in part to promote an overall equal society. Grutter, which the ruling held is still good law:

Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.

The opinion also cited various racial equality cases to advance the overall point. Diversity furthers equal protection, in part since a non-diverse community in various respects inhibits it.

I agree as well as with Shag that dealing with past discrimination and its ongoing effects is honestly a factor in decision-making here. This is so even if it might not be the only factor or one thinks the effort is woefully misguided.

I try to keep an open mind but thought the BAMN argument a little too cute by half until I read Seattle this week. I have not read Kennedy's opinion but I would like to see how he distinguished this case from that one, because it seemed pretty on point to me.

BD: "the Democrats - both the ante-bellum and progressive variety - have been racists for nearly two centuries"

Mista Whiskas: "This is a quite silly game, to take some historical position of a party to tar the current party, because parties change. Would pointing to the long history of GOP support for protectionism demonstrate that Republicans today oppose free trade?"

Parties do change. You correctly observed that the GOP used to be the party of protectionism and has since changed to a free trade party. However, Democrats have not changed and are still actively supporting government racial discrimination.

You're confusing living constitutionalism with the glaring absence of both freed slaves, and former slaveowners. The law remains the same, the facts it's applied to are radically different.

But, for the left, it's always 1865, and they are justified in imposing any hardship they want on innocent people, in their desperate effort to uplift a race who haven't been in slavery in generations.

Brett continues to refer to "innocents"but sometimes not clearly identifying who those "innocents" are. Of course Brett was an innocent" when he was born some 40/50 (?) 50 years ago when he was born in Northern Michigan as he has disclosed in comments here on other posts (Fisher v. Univ. of Texas thread.

By the same token, I was an "innocent" when I was born in Boston in 1930.

Perhaps you could identify exactly what my 5 year old mixed race son, (But, the wrong races, Caucasian and Asian, to get a preference.) is supposed to be guilty of? Because it's not me that's going to be a victim of your racial preferences, it's him you propose to hurt.

As to "innocents," in 1865, some resident of NYC probably had little direct involvement in slavery but race conscious programs that might in some fashion benefit blacks particularly in lieu of whites in some limited fashion was allowed.The 14th Amendment had not been ratified yet.

Michael, in the recent Fisher v. Univ. of Texas case, the Univ. of Texas was making an effort - I believe an honest effort - to respond to its past unlawful discrimination.Funny how none of the opinions reference that argument. (I do not know if any supporting amici made that argument.)

It's remarkably ironic, that to be allowed to racially discriminate today, you have to be able to show that you racially discriminated in the past. Kind of a grandfathering in of discrimination, no? But none of the colleges and universities in Michigan have that history of discrimination to point to, (U of M was admitting blacks before the Civil war!) which is why they had to argue "diversity".

There is a long and contentious thread of comments, including from the usual suspects at Balkinization. I did read the Scholars Brief and other Amici including by two (2) major Asian-American groups in support of the UT plan

Perhaps Sandy Levinson might comment on the history of UT that led to the plan challenged in Fisher.

In any event, these Amici briefs referenced some of the history of UT leading to the plan challenged in Fisher.

So, Michael, if you are fairly new to Balkinization, you might find the Scholars Brief post interesting and learning perhaps some more about the usual suspects, including me of course.

It's remarkably ironic, that to be allowed to racially discriminate today, you have to be able to show that you racially discriminated in the past. Kind of a grandfathering in of discrimination, noIronic it is, but such remedial discrimination must satisfy strict scrutiny. Because strict scrutiny cases are often rely on facts peculiar to the parties, race-based remedies would be repeatedly subject to challenge even if upheld the first time.

Brett and others still fail to make any originalist argument. By their logic, if I understand it, as long as a single person could be deemed "not guilty" of discrimination, no remedy which might affect that innocent person can be adopted.

This test, of course, rules out the Freedman's Bureau, which was passed by the same Congress which adopted the 14th A. The Bureau included expressly affirmative relief limited to blacks and, of course, used the tax dollars of Frederick Douglass (for example) to fund it. No doubt Douglass's objections to this process are simply hard to find on the internet.

The argument I'm making is that there aren't any Freedmen for a Freedman's bureau to concern itself with. There aren't any former slave owners to demand restitution from. THE CIVIL WAR WAS 150 YEARS AGO!

The sort of measures that could be justified a few years after a war to end slavery, in a nation flooded with former slaves, and their former oppressors, have nothing to do with the situation in the US today.

Slavery is history.

Jim Crow is history.

The oppressors and the oppressed are both dust, the war you're fighting is long over. You're not the solution today, you're the problem, like some Japanese veteran hiding in a cave, and venturing out to assault people occasionally, because he can't admit the war he was fighting in is over.

You might as well try justify strategic bombing of Germany based on WWII. I mean, if it was justified then, it's justified now, right?

You're dodging the point Brett. By your own standard of Constitutional interpretation, affirmative action is perfectly justified. The same Congress which passed the 14th A also enacted affirmative action legislation (though of course they didn't call it that). Trying to excuse it for various reasons won't fly.

As for whether we've "won", not yet and not by a long shot. We still have the dominant party of the last 40 years relying on racist appeals to a substantial portion of its base. You'll know when it's really over: when blacks and Hispanics and Asians are just as likely to vote for Rs as they are for Ds.

Excuse me, but I think I'm actually better informed about the implications of my viewpoint than you are. "Determined to embrace strawmen" DNE "informed".

The meaning of the 14th amendment hasn't changed, but the circumstances it applies to have, drastically. You're demanding the 14th amendment equivalent of strategic bombing, long after the war is over.

The Civil Rights Amendments extend beyond slavery and African-Americans. It's obvious to me that Brett has great disdain for African-Americans. Brett's comments in the Scholars Brief post that I earlier referenced focused on Brett's view that the UT plan challenged in Fisher would discriminate against someone like his young mixed-race son ("Caucasian Asian" as he referred to in a comments at this current post). It was pointed out to Brett that two (2) major Asian American Groups submitted Amici Briefs in support of the UT plan.

Another factor in support of my view about Brett is that while he may have been born an "innocent" in Northern Michigan some 40/50 (?) years ago, he may have developed a lot of racial baggage in his youth with various militia groups in Northern Michigan. [Just Google "Racism in Northern Michigan" for what was going on there in the 1950s and beyond.] Add to this his self description as an anarcho libertarian.

You're dodging the point Brett. By your own standard of Constitutional interpretation, affirmative action is perfectly justified. The same Congress which passed the 14th A also enacted affirmative action legislation (though of course they didn't call it that). Trying to excuse it for various reasons won't fly.That does not mean that affirmative action is applicable in every situation.

Even assuming arguendo that the Freedmen's Bureau facial classification of former slave operated as a racial classification,its mission was strictly limited to integrating freedmen into society.

"I actually agree with you that a change in the factual circumstances should change the interpretation. But that's the very antithesis of originalism."

Not at all, I'm not changing the interpretation. y=x*x+2; Y depends on x, but the equation remains the same. The 14th amendment permits unequal treatment as a remedy under extraordinary circumstances. We don't have extraordinary circumstances anymore. You're not justifying a leg up for former slaves, at the expense of people who profited from slavery. You trying to justify it for people who've had equal rights for their entire lives, at the expense of people who never did anything to them.

Seriously, your position IS the equivalent to launching a strategic bombing mission over Germany, tomorrow, because WWII.

There doesn't seem to be any need for speculation about another anarcho libertarian, Cliven Bundy. Is Brett that different?

And take a look at Maureen Dowd's column in today's NYTimes on Bundy and conservatives who embraced his cause until Bundy's racial rants. Just Google "Brett Bellmore + racial issues" to examine his extensive blogs commentary, much wider than Balkanization. Brettt has "somewhat" toned down his rants following recent NSA disclosures.

Mista Whiskas wonders about how precedent was applied. A reading of the opinions here could be helpful.

My take is that the plurality in effect narrowed the precedents, holding an important one (Seattle) went too far in its reasoning. In effect, bad motive, not simply singling out a certain group, would be necessary. This basically takes the lower court off the hook -- it had to take the precedents as they came.

Romer v. Evans is notable here. There many thought it was a good political process case. See also, Sotomayor's reference in her dissent. The majority avoided that argument and relied on broad equal protection principles.

Also, this makes Breyer's concurrence problematic. He said that he would not so limit the precedents. He said however that this was about unelected officials. I think Sotomayor answered his point here, showing how elected officials were directly involved.

The reference to 1865 was in response to the concern that an "innocent" being burdened by a particular policy.

My comment was that to address things in society, you sometimes have to in some fashion be burdened for things you did not directly cause.

I also voiced doubt about just how "innocent" everyone is in that respect. Brett's slipshod analysis on the race question, with respect, doesn't lead me to find him a special snowflake here even beyond the normal limitations UP TO TODAY the average person has shown on dealing with inequality.

Is the idea that the real problem is not that, though he brought it up, but that nothing really justifies it NOW? As suggested by my use of caps, I think the problems continue up to today.

These are two different issues. A third would be the choice of means. It is well noticed by now that Brett doesn't think race conscious policies (I put aside that they have been found to be constitutional -- he does confuse things though by also making a factual argument on how it "barely" has been "held" to be allowed) works here.

But, the plurality here assumed that race conscious programs are allowed. So, is that really why the measure here that singles out certain groups -- it simply is not equal protection for everyone, which is what the text of the 14A says, if we care about that -- is allowed?

Brett's responses confuse the issue, but are typical in that respect. So, I use "Brett" as a sort of device here to appeal more widely. Making it personal in that respect, including family members, is not a good idea.

ME references the 14A not being ratified yet in 1865, which is talking past the point I was making. And, since many thought the overall equal protection principle being made was in place anyway, it is somewhat besides the point.

Independently, and this isn't directly a reply to ME whose legal analysis I put to one side, I would note that one problem I see with these measures are their breadth.

With caveats, I might understand how they can fit w/i precedents, though as Sotomayor notes, some of them leave something to be desired. But, the phrasing is broad. There still remain narrow cases at least where the things blocked can be found necessary.

I would guardedly leave to local political processes to determine the question with the usual constitutional caveats. I guess that is a sort of republicanism, not the sort of direct democracy that allows singling out certain groups in this fashion.

Query: To what extent might a state amend its constitution in a manner similar to Michigan beyond a state's public colleges and universities before being considered in conflict with the 14th Amendment? I assume that some states may get into gray areas in an effort to thwart minorities.

With the changing demographics, might such work to bite in the ass new minorities?

I would assume a state would have to stop short of making it illegal to comply with AA ordered as a legal remedy in federal court, for supremacy clause reasons, but see no legal reason they couldn't direct that their own courts restrict themselves to remedies that don't involve racial discrimination, such as financial rewards to identified victims of discrimination, rather than just 'compensating' people who happen to resemble the actual victims.

Shag, I just love your vague insinuations that, if whites don't agree to be racially discriminated against now, when we become a minority we'll end up being racially discriminated against by blacks. I guess that's the new, "Give them what they want, or they'll riot!"?

Brett, there is no threat. I don't anticipate that with the changing demographics that whites will be discriminated by blacks (who are only a part of the changing demographics. Since the Civil War Amendments, blacks have tried to improve their lot within the system for the most part. It took decades, many decades, after these Amendments before Brown v. Bd. of Educ. (1954) and Civil Rights Acts with the continued antipathy of the former Confederate States towards blacks. And blacks continued for the most part to work within the system. But the hatreds run deep,passed on from generation to generation, extending into Northern Michigan. I don't expect Brett to be scared. But time will eventually overcome bigotry. With more and more diversity, young children will not be trapped by the bigotry of their parents passed on.

Not particularly scared by the threat.# posted by Blogger Brett : 4:49 PM

You should be. The "threat" means that the party of racist scum will be winning fewer and fewer elections. Of course, cancer will probably/hopefully kill you before that reality is realized. At least your kid will benefit from it.

That's what I anticipate: Time is now overcoming bigotry, and, while bigots will never cease to imagine excuses to continue racial discrimination, their numbers are declining to the point where they can't impose this on others.

Romer v. Evans is notable here. There many thought it was a good political process case. See also, Sotomayor's reference in her dissent. The majority avoided that argument and relied on broad equal protection principles. a significant difference between Romer. and this case was that the law at issue in Romer eliminated all sexual orientation preferences for homosexuals, but not any for heterosexuals. Michigna's law eliminated racial preferences for all racial groups, not any specific racial group.

Yes, the minority argument was that it was targeting blacks, because only blacks had any real prospect of getting preferences, so only blacks could lose their chance to obtain them.

"Minority" opinion. Even if Kagan hadn't recused herself, it would have been a 6-3 decision, not particularly close. Sotomayor couldn't even persuade Breyer that her position was reasonable. Only the "Preferences today! Preferences tomorrow! Preferences forever!" clique was with her, and they're not big enough to matter anymore.

I think it's all over but the whining, racial discrimination is now on the ropes.

a significant difference between Romer. and this case was that the law at issue in Romer eliminated all sexual orientation preferences for homosexuals, but not any for heterosexuals. Michigna's law eliminated racial preferences for all racial groups, not any specific racial group.

Both the rich and the poor are prohibited to sleep under bridges?

Romer might be more blatant but as Hunter v. Erickson notes "the reality is that the law's impact falls on the minority" and singling out "race" still is a problem.

---

Brett talks about use of financial means to help "actual victims." The range of 'actual victims" in society here would -- if we were actually serious about that -- a pretty large order.

That is, if we seriously address ongoing harm, and not just the "harm" accepted by current law -- use of a range of criteria when determining who should enter colleges et. al.

But, financial means isn't the only way to deal with the problem & it never was satisfactory. Grutter et. al. explains how other means also are available & I continue to think that at the very least it should be done by normal political processes, not singling out certain groups by amendments of this nature.

Brett, Breyer supported the political process approach, but thought on the facts that the people making the decisions here were not elected officials.

Your overall argument goes further than his narrow argument. It is unclear how Kagan would have decided, but reasonable to assume she would at least agree with him. Breyer of course thinks the programs you find racist and unconstitutional are allowed and good policy (that's pretty clear).

And, looking at the facts, Breyer's splitting the baby isn't convincing & he didn't seriously address Sotomayor's analysis of how the elected officials were directly involved here.

Will Justice Sotomayor's dissent be placed alongside Justice Harlon's dissent in Plessy as time goes on? C.J. Roberts has to avoid drawing a line in the sand on his Court regarding racial issues which will yet take some time what with Bundy et al.

Romer might be more blatant but as Hunter v. Erickson notes "the reality is that the law's impact falls on the minority" and singling out "race" still is a problem. Hunter was however limited to barriers the enactment of anti-discrimination provisions, not barriers to preferential treatment on the basis of race.

Indeed, segregation is preferential treatment on the basis of race, so under Jusrtice Sotomayor's rationale, a state can not ban racial segregation outside the context of public education, because such the impact of anti-segregation laws falls upon the racial majority, requiring them to clear a greater hurdle than those who wish to institute segregation on the basis of other characteristics.

(Justice Thomas, in his Fisher v. University of Texas concurrence, pointed out that people have argued that racial segregation benefits minorities.)

The back and forth involving Brett seems unnecessarily personal and nasty. I can respect Brett's position and situation: why should his mixed race young son have to see his peers of other races get preferences later in life? I can not see how someone could not understand that as a father Brett would find that hard to support.

On the other hand Brett seems far too dismissive of the concept that long term state sanctioned discrimination can have effects lingering into the present and disadvantaging the children of those directly oppressed. Some of us want to help remedy that situation, is that so hard to understand?

More interesting to me are the legal aspects of the case. Joe, from my reading of the majority opinion Kennedy distinguishes the current case from Seattle and Hunter in that the latter involved "how to address or prevent injury caused on account of race" or "demonstrated injuries onthe basis of race that, by reasons of state encouragement or participation, became more aggravated" while the current case dealt with"whether voters may determine whether a policy of race-based preferences should be continued." I agree with the dissent and the Scalia concurrence that such a conclusion is untenable. It can be argued that in Hunter there was a basis of state discrimination leading to injuries which were made structurally harder to reverse politically, but I do not see the situation in Seattle as distinguishable. In both cases general policies to address educational disparities by race were removed to another political level, though no invidious motive or contemporaneous context was found. Either Seattle should have applied in this case or it should have been overrruled.

What I'm dismissive of, is the idea that you'll ever clear up those lingering effects, by continued racial discrimination.

Look, what are these 'lingering effects', anyway? What they are is culture. We have developed in this country a sub-culture, which is strongly correlated with race, but not a matter of race, disdainful of all that is actually necessary for success.

In fact, I think that's what affirmative action is about: Not fixing things, but creating the ILLUSION that they've been fixed. People advocate continued, perpetual racial preferences, because they've given up on ever fixing things.

I don't know how you fix a broken culture. I'm pretty sure you can't fix one if you won't admit it's broken, and insist on actually encouraging the people belonging to it to blame everybody but themselves.

And there you have it. It's not racism that gets black people pulled over for driving while black, it's their culture that gets them pulled over. Cliven Bundy isn't a racist for wondering if black people were better off when they were slaves, it's their culture that makes him wonder about things like that. Thanks for clearing that up, Brett.

why should his mixed race young son have to see his peers of other races get preferences later in life? I can not see how someone could not understand that as a father Brett would find that hard to support.

On the other hand Brett seems far too dismissive of the concept that long term state sanctioned discrimination can have effects lingering into the present and disadvantaging the children of those directly oppressed.

It seems to me that your second point negates the first one.

Any suggestion that blacks are anything more than passive victims, that they've got any responsiblity for their own fates, faces savage attack.

There's also the possibility that culture is a response to social conditions rather than a cause of them. Or that "culture" is one of the lingering effects of past racism, and therefore the government needs to take additional steps to help break that cycle. Or that the situation is complicated in other ways.

Affirmative action has been proposed intended to address that cultural gap-the idea is that if blacks, for example, are brought into Ivy League schools or the officer corps or what have you that they are not only immersed into different cultural settings but also may become role models for others which do not.

Even if the cause is culture then surely that culture is a result of past state oppression, so what can be done about it?

I would also ask you to think about the possibility that some lingering effects will be something more tangible than culture (for example, since one source of wealth is inheritance there is quite a wealth difference between blacks and whites on average, this wealth difference then exacerbates the gap making it harder for blacks, relative to whites, to get loans, invest in educational opportunities, etc.).

Mark, I am not sure that the two contradict each other. Brett, or anyone, could acknowledge that black sons and daughters are paying the price for past state oppression without wanting to see their child, which did not in any way cause the former situation, pay in any attempt to ameliorate it.

If black sons and daughters are continuing to pay a price -- and I think they are -- then it follows that other sons and daughters benefit from that, even if indirectly. It's therefore to "tax" them for that benefit.

And there you have it: Any suggestion that blacks are anything more than passive victims, that they've got any responsiblity for their own fates, faces savage attack.# posted by Blogger Brett : 1:59 PM

Brett, you're not being savagely attacked because you suggest that blacks take some responsibility for their own fates, you're being attacked because you refuse to acknowledge that their fate is closely linked to the way they have been treated by racist scum like you.

Bartbuster, you are nothing but an internet troll, whose self-appointed mission in life is attacking anybody who dares to dissent for liberal orthodoxy. Granted, Shag has little more tolerance for dissent, but at least he attempts to be witty, and halfway succeeds.

Here is how I see the situation: We have, in our inner cities, and spreading out into the larger society, a depraved culture. A culture which does not value reliability, hard work, academic success, or any of the other traits which are key to success it the economy. This culture is, because of historical reasons, disproportionately composed of blacks, but not because to be black is inherently to be depraved, only because of an historical accident, that the culture grew up in the city centers blacks had migrated to.

Normally, in a sane society, such a culture would self-destruct inside of a generation, because it can not support itself, being so radically unproductive and self-damaging. But we have a welfare state feeding it, so it does not die off, but grow.

This depraved culture teaches children an ethos of anti-success, at best it fails to teach the traits that are needed to succeed in life. Children raised in it go to school, and do not learn.

This looks bad, so grading standards are lowered to conceal it. The children 'graduate' from highschool, thinking they have been educated, with pieces of paper attesting to this having happened... lying pieces of paper.

They apply to college, but entrance exams expose the truth. This looks bad, so a two track system of admission to college is instituted, to give these poor souls spaces in college which might otherwise have gone to people who would have succeeded.

But they are ill equipped to learn in college, and fail there, unless grading systems are in turn falsified. Then they graduate from college, with a piece of paper falsely attesting to all they didn't learn. And go into the real world, where you need to know how to do things to be employed.

So they don't get hired, and this looks bad. Lawsuits are filed, and employers are forced to implement quotas, hire unqualified people to produce the demanded numbers.

This is the reality of "affirmative action", it is what we are discussing. A Potempkin illusion of equality from bottom to top.

All to disguise the product of a depraved culture we can't bring ourselves to do something about. Or, if you're a liberal, even admit exists.

This is the system I will not tolerate my son being the victim of: Not a system to ameliorate inequality, but a system to paper over it.

The point here is that you don't help the victim by creating the illusion that they're ok, and then ignoring what really made a victim of them. Affirmative action does nothing to fix the system that's turning out people who need affirmative action to look like they're succeeding.

Note, e.g., he compares BB to Shag. This moves past to his comment before that anyone who shares a certain viewpoint is lashed back at. Pointing to an alleged "troll" is not the same thing as "anyone."

Second, Mark Field's suggestion is appropriate. The reference to "inner cities" is for one thing rather limiting. We can go deep into root causes, but the underclass in society -- now and in the past -- isn't something that begins in the "inner city" and working outward.

The problem is a lot more complex than that. It is useful to point out as Mark Field notes why certain things are true. A look at history and current reality shows "welfare" is not the reason it continues for 'more than a generation.'

Jesus two millennium ago said the poor will always be with us. He might have thought the ends of days was upon us, but simply put, long before there was much "welfare" an underclass, including disproportionate to a certain group or race, existed.

Brett's analysis is unfortunately simplistic. But, it's helpful that it at least was provided.

Brett, you have convinced me that the government should cease all cancer research. We've done enough to help cancer victims. Why should I have to pay for their defective genetics? It's time they sucked it up and solved their own problems.

"If black sons and daughters are continuing to pay a price -- and I think they are -- then it follows that other sons and daughters benefit from that, even if indirectly. It's therefore [fair?] to "tax" them for that benefit."

I think it is a tricky issue. The 'benefit' for many white sons and daughters might only be that they do not have at least some of the 'drags' lain upon black sons and daughters, and when you come to examples like Brett's of an Asian child, it seems odd to weigh any 'benefits' that inure to them because of a second race oppressing a third for which they should be taxed.

Trading off the welfare of one innocent though better off person to help one less well off is inherently problematic, but if there exists a situation in which systematic government oppression has put a group on average at a disadvantage then it does seem like any effort to ameliorate that will fall more heavily on non-disadvantaged groups, and this will include resources that they may have planned for their children. I think one can think that a diffused, regular relatively small monetary tax, perhaps to provide ameliorative steps in various social services, is less morally problematic than something as life defining as college slots.

Hunter was however limited to barriers the enactment of anti-discrimination provisions, not barriers to preferential treatment on the basis of race.

Your original comment turned not on "preference" (after all Romer struck down the measure even though you phrased it as a "preference"), but the measure here not being directed to a specific race. But, Hunter didn't turn on that -- that too only cited "racial" in general. Hunter applied a general principle, however the plurality (your reference below to "Sotomayor" notwithstanding, Justice Breyer agreed with her on the relevent point here):

In the case before us, however, the city of Akron has not attempted to allocate governmental power on the basis of any general principle. Here, we have a provision that has the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest.

Your further argue:

Indeed, segregation is preferential treatment on the basis of race, so under Justice Sotomayor's rationale, a state can not ban racial segregation outside the context of public education, because such the impact of anti-segregation laws falls upon the racial majority, requiring them to clear a greater hurdle than those who wish to institute segregation on the basis of other characteristics.

First, as noted, it isn't just "Justice Sotomayor's rationale." Second, the rationale doesn't override other constitutional barriers, including public support of illicit race segregation. Third, Carolene Products, FN 4 (which she cites) principles recognize that certain minorities (including racial) can need additional support in various respects, including a more searching system of judicial review. Finally, the rationale is concerned with more burdensome political processes, not simple legislation that might in some fashion burden some group. Sotomayor herself noted if normal political processes resulted in ending various programs, that would not be an issue as applied here.

"But we have a welfare state feeding it, so it does not die off, but grow."

Is your solution to cut off the welfare state? If so, one can not help but note that your opposition to one proposed solution is based in your interests (your son's opportunities) while your suggested solution would also be in your interest (your taxes supporting that welfare state would lower).

Would that all social problems and moral dilemmas could be solved in ways that protect and promote our interests, but one might think the right thing is one that could be costly (though I agree costly to one's child is another situation altogether).

The 'benefit' for many white sons and daughters might only be that they do not have at least some of the 'drags' lain upon black sons and daughters, and when you come to examples like Brett's of an Asian child, it seems odd to weigh any 'benefits' that inure to them because of a second race oppressing a third for which they should be taxed.

Since social position is all relative, the lack of drag is a benefit. But it goes beyond that. Were it not for the prior 350 years of slavery and segregation (in the case of blacks), then we would have seen blacks have the same relative social and economic capital as whites. They'd have been able to compete equally. Instead, they were handicapped in their ability to compete. Those who weren't handicapped thus had opportunities unavailable to those who were. That's a benefit too, and because both forms of capital are cumulative, the benefit grows in every generation.

There are no "innocents" here. To adopt that position is to treat society as a random collection of atomistic individuals. We're not that.

Think of it this way: nobody believes that Germans who opposed Hitler had some ground for complaint when their homes were destroyed by Allied bombs or shells. They shared the risks of their society, just as they shared the benefits.

Today, those whose ancestors were not subjected to segregation or slavery have the collective benefits those policies gave them. As I said, a small tax -- small relative to the harm done -- on those benefits is a very fair price to pay.

Brett skips over the basis of my reference to Jesus to return to cant. I recognize he is against certain measures. No one here wants to factorize inner cities. I realize he thinks certain things do that.

"Affirmative action" covers a lot of ground as Sotomayor notes in a footnote. A range of measures, here and elsewhere certain ones have been justified, are "part" of the solution along with other things. Hyperbole that they do "nothing" isn't helpful.

Finally, the measures are supported by a range of people. So, know your opponents. They are not just "liberals." Brett has broad game. Selective targeting helps the distaste that Mr. W. is concerned about. It also hurts the cause.

At the least, the welfare state ought to be smarter. Our inner cities are economic disasters. Pay somebody to stay there, and you pay them to remain unemployed, surrounded by other people who are unemployed. I've proposed in the past, and stand by the suggestion, that public assistance involve a requirement to move to someplace with lower than average unemployment. And assistance in doing so.

I've also suggested that the CCC be revived. The general principle is this: Nobody gets something for nothing. You want money that was taken from other people, who worked to earn it, and really would like to spend it themselves? Then work for it.

Your proposals are fair and reasonable. I think there might be some real complications to them (it is hard for some women with children or some elderly/disabled folks, who make up a significant portion of such communities, to work in a CCC type program) and they might not be enough, but there are significant problems with the current welfare state too.

Mark

I think you actually planted the seeds to refute you in your own post in referring to German non-supporters of Hitler. It is a general moral principle in war that where one can avoid innocent casualties one should. For example, one should not target civilians not connected to the war effort. If one knew that such civilians were opposed to your enemies the moral duty to not harm them would only increase it seems to me. And how much more should one avoid targeting children. To the extent that affirmative action eschews this type of thinking in order to chuck the idea of 'atomistic individuals' in favor of some collective preferences and punishments morality I think it raises serious moral qualms.

I think you actually planted the seeds to refute you in your own post in referring to German non-supporters of Hitler. It is a general moral principle in war that where one can avoid innocent casualties one should. For example, one should not target civilians not connected to the war effort. If one knew that such civilians were opposed to your enemies the moral duty to not harm them would only increase it seems to me. And how much more should one avoid targeting children. To the extent that affirmative action eschews this type of thinking in order to chuck the idea of 'atomistic individuals' in favor of some collective preferences and punishments morality I think it raises serious moral qualms.

Those are 2 separate and distinct issues. The fact that someone is a civilian is itself enough to demand non-targeting (where possible; an important qualification given the context). The rules of war (I hesitate to call them laws) don't distinguish between (a) civilians who support the regime and (b) civilians who don't.

Some of Brett's proposals are likely productive though then again many "liberals" support them while non-liberals oppose them in various respects.

The CCC, e.g., was a major New Deal program. His idea of people moving based on unemployment numbers opposes how the PTB, again not just "liberals," often like the underclass massed as to population zones. This sort of matches up with looking at the big picture, beyond "liberals" or blaming the victim.

It is not necessary an either/or thing. Also, welfare etc. repeatedly requires something. The measures here, e.g., require educational effort. Benefits to care for children require something too as any parent knows. etc. And, at least, there repeatedly is a lot of intrusive governmental oversight.

No one really gets "nothing" for something here. Regardless if one rejects the analysis provided that AA programs, including for diversity reasons that are used for a range of governmental and non-governmental actions now as it has in the past, makes sense.

Second, the rationale doesn't override other constitutional barriers, including public support of illicit race segregation. The thing, is , government race segregation, outside of the context of public education, has never been struck down by the Supreme Court absent a showing of tangible inequality. As such, the "separate but equal" doctrine remains a binding interpretation of the 14th Amendment outside of the context of public education.

The Supreme Court never had the opportunity to strike down this doctrine in its entirety, because Congress adopted anti-discrimination laws which prohibit "separate but equal" by the federal government, many state legislatures did the same, and many states have their own equal protection clauses. (Michigan's equal protection clause was adopted in the 1960's, so presumably it would prohibit "separate but equal" racial segregation.) As such, if government officials practiced "separate but equal", it would be struck down on statutory or state constitutional grounds.

Racial segregation benefits certain racial groups. If the political process was altered to make it more difficult to achieve government racial segregation, then under Sotomayor's reading of Seattle, it violates the equal protection clause.

Essentially because the Court came, I think correctly, to believe that "separate" was never going to be "equal", because the only people who wanted "separate" were the people who didn't want "equal". (I'm hoping they will eventually have a similar epiphany concerning "reasonable gun regulations".)

If you'd presented the Brown v Board of Education Court with a genuine example of separate but equal, they might have given it a pass. However, I don't think it's a safe assumption that today's Supreme court would have the same view of the matter. They seem to be pretty firmly in the "just treat people the same!" camp, gradually coming around to the view that the government has to simply stop treating people on the basis of race, and that's it.

"To the extent that affirmative action eschews this type of thinking in order to chuck the idea of 'atomistic individuals' in favor of some collective preferences and punishments morality I think it raises serious moral qualms."

More than just moral qualms, essentially for affirmative action to make sense, you have to buy into the fundamental premise of racism: That it is legitimate to treat individuals as mere instances of a group, that guilt and innocence are not individual but collective.

This is the same reasoning that justified lynchings. The reason affirmative action was never terribly popular, and is on it's way out, is that the 'civil rights' community originally managed to hammer home the opposite principle, MLK's "content of their character". The public has taken it to heart, even as the civil rights community has abandoned it.

"I think invidiousness and a sense of ill will are fundamental too, both absent here."

No, that's just an excuse paternalistic racists hide behind. Suppose the KKK had been in it to help whites, instead of harm blacks. (This supposition might even be true!) Is there any reason blacks should have cared?

Why should anybody care that today's racists mean to help blacks, when to do so, they harm everybody else?

The thing, is , government race segregation, outside of the context of public education, has never been struck down by the Supreme Court absent a showing of tangible inequality. As such, the "separate but equal" doctrine remains a binding interpretation of the 14th Amendment outside of the context of public education.

The USSC right after Brown, by a series of orders not referencing "tangible inequality" struck down state authorized segregation in buses et. al.

The reference to Johnson is helpful. In part: We have held that “all racial classifications [imposed by government] … must be analyzed by a reviewing court under strict scrutiny.” Adarand Constructors, Inc. v. Peńa ... so, with respect, "the thing is" your continual ex cathreda tone on legal matters here and other blogs warrants a tad more humilty given your repeated mistaken interpretation of it. Good luck convincing some court that "separate but equal" remains binding in that sense.

The Supreme Court never had the opportunity to strike down this doctrine in its entirety, because Congress adopted anti-discrimination laws which prohibit "separate but equal" by the federal government, many state legislatures did the same, and many states have their own equal protection clauses. (Michigan's equal protection clause was adopted in the 1960's, so presumably it would prohibit "separate but equal" racial segregation.) As such, if government officials practiced "separate but equal", it would be struck down on statutory or state constitutional grounds.

If "many" state legislatures did so, it means "some" did not. Thus, an opening for review. I do see the latest Michigan Constitution is cited as being ratified in 1963. What it itself "prohibits" exactly is unclear, especially since the state of the law in 1963 (when interracial marriage, e.g., was still not clearly protected nation-wide) is different than later on. Also, it is a state constitution, which could go further than what the federal constitution requires. Or, it can provide less -- a separate but equal claim could very well rely on what the federal constitution requires. The USSC all the same "had the opportunity" in the very least by determing even allegedly beneficial race conscious programs (see, e.g., Adarand) had to meet strict scrutiny. If "separate but equal" was "binding," it is curious that "all" was used there.

Racial segregation benefits certain racial groups. If the political process was altered to make it more difficult to achieve government racial segregation, then under Sotomayor's reading of Seattle, it violates the equal protection clause.

Racial segregation of this type would violate independent federal constitutional demands & Sotomayor is not denying them. Even if this is not clearly the doctrine, it would merely be a matter of first impression & the USSC majority would most likely so hold.

Finally, her argument is that a special burden is involved that takes a class of things outside of normal political processes. If your hypo merely involved normal political processes, that is, if some locality passes a law & it could be changed if a new majority in the city council determines a need for it, race not singled out for special burdens before the law could be changed, it would also not violate her principle.

It is not that some normal law that in some fashion makes it harder for some group was passed. Anti-discrimination law do that in some fashion. Your "gotcha" doesn't work since it misses the point.

The Michigan law IS an anti-discrimination law, and nothing else. It prohibits the universities from discriminating. That's what's bizarre about the case, the effort to have a law banning racial discrimination struck down on equal protection grounds.

It doesn't merely "prohibit the universities from discriminating" -- this has been covered already. It singles out certain groups.

Even then, it goes beyond "discriminating," which is shown by "preferences" being listed separately. This also reflects that current doctrine is that race conscious programs are allowed in certain cases. It is not illicit racial discrimination. The problem here therefore is singling out certain classes of people from normal political processes regarding allowable policy choices. A range of allowable "preferences"? Normal elective means available. Racial? Special burden.

"Suppose the KKK had been in it to help whites, instead of harm blacks."

Brett, with all due respect, I think what you are missing here is this: the KKK could, and was, in it to help whites by harming blacks, so there would still be invidiousness. Whatever else racial preference enactors are doing I do not see them as wanting to harm anyone. You may argue that despite no such motive that the result still follows, but a person's intention often as a legal or moral matter turns an otherwise illegal or immoral thing into a justified or excusable thing. Saying that intent doesn't matter is to toss an understanding as old as the common law or the Bible out the window.

With all due respect, I care not a whit whether you want to institute racial discrimination against my son out of hostility towards him, or out of beneficence towards somebody else. I only care that you're going to institute racial discrimination against him.

Salve your conscience all you like, I don't care if you manage to have a clean conscience as you implement racial quotas. Nobody cares if you feel good about doing it.

Too bad your idea of treatment is to help them pretend they haven't been harmed, instead of stopping the harm.

Have you looked at the black unwed childbirth rate lately? 72% nation-wide. Over 80% in the inner city. Your racial preferences have done diddly to treat THAT. It's grown worse while the civil rights community got it's way. Enormously worse. Before the civil rights era, it was down around 15%.

A bandaid over a gushing artery, that's your idea of treatment. because you faint at the sight of blood, and just want to hide it.

The Black middle class grew significantly following the civil rights era, more recently the black upper class has grown. These are the likely beneficiaries of affirmative action in education. See the work of Bart Landry. This of course does not deny that there is a very large and chronic black underclass as well. Of course affirmative action does little to help them, but it seems to have helped many blacks.

You'd be hard put to set up a massive system of racial preferences in education AND hiring, where not implementing the preferences in your hiring and retention could get you sued, without benefiting at least SOME of the people getting the preferences.

Just as you're harming the people getting the anti-preferences. But they don't count, not being black.

But, taking some blacks, and increasing their success, while the black underclass's situation actually gets worse as it expands, is this something to brag about? Black children born and raised in whole families are an increasingly unusual exception in America, and numerous studies have shown what a handicap not having both parents will be.

While Brett's breath is being baited, I trust commenters are reading posts commenting on Bruce Ackerman's third volume of "We The People" on the Second Reconstruction, aka the Civil Rights Movement. Mark Graber's post is very interesting.

As Brett continues to take the bait, keep in mind he is merely a tree in the forest of racism.

"But, taking some blacks, and increasing their success, while the black underclass's situation actually gets worse as it expands, is this something to brag about?"

This just proves that the remedy we are talking about does not solve the problem for every black person, but I do not think it was ever intended to. And that it does not do that does not mean it causes or exacerbates the plight of those it was never thought to help.

Brett's argument also works for shutting down schools. Since some graduates still end up as ignorant racist scum like him (apparently doomed by our attempts to educate others), we should stop trying to educate anyone.

The Donald Sterling brouhaha reminded me of the importance of sports going back to my youth in the Boston area. I was born in Boston in 1930. While I do not remember much of the Great Depression, I do recall older kids in uniform who were part of the CCC. I also recall what were referred to as the "Wellie" stores where I sometimes saw some of my classmates carrying bags of food and ill-fitting clothing. My immigrant family was not on welfare. I had a happy childhood in my pre-dominantly Irish Catholic neighborhood in Roxbury centered by St. Patrick's Parish. (I am not Irish nor Catholic but of an older Christian faith, although I soon leaned secular at a relatively early age.)

Sports was a big deal in Boston, what with two major league baseball teams. Boston was also a big hockey town. It was difficult sports, especially during baseball season, what with so many daily newspapers with frequent editions extending into the early evening editions that would provide the "numbers" for those imbibed in a modest form of gambling.

And then came Ted Williams to the Boston Red Sox in 1939, exciting fans, fueling the competition between Red Sox and Yankee fans. I was - and remain - a Yankee fan. Joe DiMaggio was my favorite. He had a great backstory as an Italian-American kid growing up with his brothers in San Francisco, helping their father with his fishing boat and in between fishing chores Joe and his brothers Vince and Dom would take turns using old oars as bats, hitting pitched rocks, shells, whatever.

Ted Williams was a handsome lad, also from California. He fit right in (except for sportswriter David Egan) as he looked a lot like a lot of Anglo-Saxons in Boston. In fact, Ted was a Mexican American raised by his Mexican mother, his dad having left the family early on. I was not aware of this at the time and I read so much about him back then. In a memoir Ted wrote well into his career, he provided this background, expressing his great love for his mother and all that she had done for him. Ted recognized that the times were not conducive to touting his heritage. (I recall the "Zoot Suit" riots in CA back in the early '40s.)

The owner of the Red Sox was Tom Yawkey, a gentleman of the South who had disdain for Negroes. I'm not aware of Yawkey's views on Mexicans. But Yawkey - and Red Sox fans - bought into Ted Williams lock, stock and especially the barrel of his bat that exploded in 1941 with the magic BA .406! He was awesome and so All-American and volunteered early during WW II adding a strong military record to his amazing baseball accomplishments.

Joe D was popular as and Italian American among many baseball fans. Would Ted have bee as popular as a Mexican-American in those times?

Back in the late 1930s, a significant portion of the Orchard Park neighborhood in Roxbury was designated for renewal with a federal housing project for workers for the then growing defense industries as our entry into WW II approached. I learned of this as schoolmates were evicted from their housing and the resulting empty buildings that salvagers ravaged before demolition took place. There were then built many three-story re brick housing units (garden style?) over a large area centered around the Dearborn School (Class of '43, I'm proud to say) and Orchard Park, where we spent hours and hours into the early evenings playing ball, hanging out. Each building housed many residential units with small rooms. Three such buildings on one side of the Dearborn School in an isolated portion of the project were reserved for Negroes. The remainder of the projects, perhaps 90%, was reserved for Whites. This was my first experience with segregation and I did not understand it

We continued to play ball in Orchard Park. Some of the kids in the segregated section who lived closer to the Park than most of us did would watch. It took a while but eventually they joined us. There were some mentors, both Black and White, who helped to accommodate this mixing. There were some who objected. The segregation continued for many years. With White Flight after WW II, eventually the segregation ended and eventually the project was privatized by a complete makeover of what were very small units into better sized iving quarters.

I learned more about segregation as I grew older, including the history that led to it. I didn't know about Jim Crow back in my early teens.

Let's jump to 1945 and back to baseball. The majors were about to explode as great ball players were gradually being discharged from military service. I became aware that an exhibition game had been scheduled for Fenway Park featuring an All Star Negro team that included Jackie Robinson, Roy Campenella and others who later became major leaguers. The other team may have been the House of David. Before the game started, each team went through drills. The choreography of the All-Stars was awesome. Jackie Robinson was the shortstop (not second baseman). The pitchers for the All-Stars looked great

The game was exciting and was won by the All-Stars. Kids like myself had known of the Negro League from our readings, including of the Sporting News. Witnessing the competitive quality of the All-Stars made this for real.

It's been told that Robinson tried out for the Red Sox in 1945. Apparently Tom Yawkey was not ready to abide by Negroes in the major leagues, especially with Red Sox. But it was inevitable and the Brooklyn Dodgers broke the color barrier when it brought up Robinson in 1947 to the Dodgers (as a second baseman). This led to other Negroes. Alas, the Red sox were far behind, presumably because Tom Yawkey was a gentleman of the South.

Following the Dearborn School, I went to Boston English High School (Class of '47, thank you), a central high school then located in Boston's South End. It was all boys. Very few of Boston's high schools back then were co-ed. What diversity! I reflect upon the diversity frequently when I have occasion to browse through my yearbook, wondering where and what they look like now.

The sport of basketball was in the doldrums in the Boston area as it had been dropped from the sports offered during the Great Depression and continuing into WW II. But after a year of so into English High basketball was reinstituted in Boston high school sports. As WW II was winding down, college basketball started to flourish. There had been strong basketball communities in MA but Boston was taken by Bob Cousy, Tommy Heinsohn et al at Holy Cross in Worcester. There was a basketball fever. Then the NBA started and Boston got the Celtics franchise, which Bob and Tommy eventually joined. Ticket prices were affordable and I would show up a few minutes before game time and get a great seat. Eventually Negroes came into the NBA, Chuck Cooper being the first for the Celtics. Then came Bill Russell and the Jones boys, under the guidance of the great coach Red Auerbach. Over the years the Celtics won many titles, continuing after the Bill Russell era with Larry Bird et al. No longer could I go to a game shortly before it was to start and get a great seat; and it cost more. Who can forget the exciting Celtics games on TV (free) over those years.

Alas, the success of the Celtics did not end racism in Boston, what with busing that came about after Brown v. Bd. of Educ. in 1954. But basketball was integrated at both the college level (for the most part) and professionally, as had baseball, football and other professional sports. I do not want to jump ahead, so bear with me on more to follow.

During my senior year of high school I received very little guidance on college. Many GIs with the benefit of the GI Bill were starting to flood colleges, including my older brother, who volunteered for the Army in early 1946 after the hostilities of WW II had ended but got the full benefits. While our immigrant parents encouraged us to excel in school, they had no concept about education after public school. So I got a job, no heavy lifting, that looked like a dead end. So I quit in late 1948, thinking of joining the military. My dad told me to take some time off to think more about my future, suggesting I spend some time with his friend who lived in Hialeah, FL.

I took my dad's advice and in January of 1949 took the train from Boston to go to Hialeah. When the train pulled into Virginia, there were changes, recognizing the "cultures" of southern states. "When in Rome, ...." But this was America and it was wrong in my eyes. I was not prepared to refight the Civil War.

My dad's friend and wife were quite accommodating and I did the usual tourist things, finding Hialeah, Miami and Miami Beach quite enjoyable with the ease of public transit. Frequently I would take the bus from Hialeah to downtown Miami, a much better downtown than back home in Boston. Late one afternoon I got on a crowded bus downtown to get back to Hialeah, finding a seat for the fdirly long ride on the rear bench. As the bus make stops, passengers would get on and off. I stayed on the back bench.

After a while, there were plenty of empty seats in front of me. But I was comfortable with my seat on the back bench. I noticed all of a sudden passengers in front of me turning their heads towards me, both white and colored passengers. It then dawned on me that I was in Rome and expected to move forward so that coloreds could sit to my rear. How dare they! This was America. I would not be intimidated.

Nobody did anything. After a few more stops, there were no more coloreds on the bus and I was back in Hialeah.

This preceded Rosa Parks' bus incident in 1955, sort of a reverse situation, for a stubborn 18 year old. I was not about to refight the Civil War, so I subsequently was careful to abide by the local rules that I despised. (Quite frankly, back in my high school days when I would ride a trolley, my friends and I would usually head to the back of the trolley for a sense of "privacy" from the old folks, carrying-on like teenagers.)

My 2-3 week hiatus stretched into two glorious months of great weather, ending when a Boston family vacationing in the area visited my dad's friend. They were planning to drive back to Boston and offered me a ride to St. Petersburg so that I could see the NY Yankees in spring training. (By then I was well bronzed by the Miami sun, perhaps beyond John Boehner.)

On the way, we stopped at Bradenton and caught the end of a game at the Boston Braves' spring training camp. The Braves had won the NL Pennant in 1948. Shortly after the game ended, with my $2.98 camera I got a great shot of Eddie Stanky arguing with a sports reporter planning to interview him. Stanky was agitated when the reporter asked him what position he played. He said he was busting his ass in the hot sun during the game, which perhaps the reporter was not even watching.

Stanky was the Dodgers' second baseman in 1947, with Jackie Robinson playing first base. I recently learned that Stanky came to Robinson's defense for vituperative attacks in particular by the Dodger outfielder Ben Chapman. Ironically, Stanky was traded in 1948 to the Boston Braves, permitting Robinson to play second base, a more natural position in 1948. Stanky was of course a "winner" as a member of the 1948 NL champion Boston Braves. Who doesn't remember from those days "Spahn, Sain and pray for rain."

Then on to St. Petersburg, watching the Yankees for a week of spring training. I was directed to Miller Huggins Field, which was ungated with portable stands, permitting fans to freely watch an intra-squad game and then permitted to mingle with the players and take pictures of our heroes. The Yankees had yet to break the color barrier.

I went to Al Lang Field in nearby Tampa, where the St. Louis Cardinals trained for an exhibition game with the Yankees. After buying my ticket but before entering the park, I notice a bunch of kids my age on a street behind left field that bordered on Tampa Bay. It was batting practice time and these kids were shagging home run balls. So I joined the scrum, fairly quickly and luckily securing two baseballs which I stuffed in my pockets. Another home run was coming towards us and we bunched up under it, and I used my baseball hat as a glove as I leapt, catching it on the fly. Fans in the left field stands let out a cheer. I had quite a haul and not enough pockets and I still 575had a game to watch.

As I started to the entrance gate, another batting practice home run landed on the street and big bounced into Tampa Bay. Baseballs, when new, float. There was a kid in a rowboat in the Bay who started rowing towards the ball. One of the kids on the street took off his shoes and pants and dove into the Bay, racing for the ball and won. We all gave him a standing ovation.

As for who won the game, I don't recall. But there was so much to remember.

I neglected to mention in my preceding comment that Casey Stengel replaced Bucky Harris as Yankees' manager after the 1948 season. Seeing Casey at Miller Huggins Field brought back memories of the early '40s as a member of the Boston Braves Knot Hole Gang, with Casey presiding over a hapless team. Who thought back then that Casey would ever manage the Yankees, and so successfully?

*****

Since my funds were getting low, I took a Greyhound Bus from St. Petersburg to Washington, DC for what was to be a brief visit with my dad's relatives. The trip was horrible compared to train. Upon my arrival, I was overwhelmed by the District, my first visit there. My relatives lived in a magnificent townhouse in the Embassy district. There were wide boulevards, plenty of open space. My relatives were most accommodating, with cousins my age escorting me to the usual tourist sites. It was cherry blossom time and a light snow the night before my tour was spectacular with the blossoms peeking through the snow.

I had known about the large colored population in the District but did not notice their neighborhoods. My cousins told me that many of such neighborhoods were located in inner blocks. While the District was federal, I was somewhat confused. I guess over the years this was preferable to living in Virginia.

A short visit extended into a month, a month I enjoyed with my cousins and their friends, who made me feel so comfortable.

*****

I then headed north, again by Greyhound, to Forest Hills, Long Island for a short visit with my mom's relatives. My grandmother had been concerned with the health of her younger brother, my great uncle. I was treated well even though it was a difficult time with the failing health of my great uncle. His son, a self made businessman, stressed to me the need of furthering my education. During my 3-month journey I had been giving a lot of thought to my future, well realizing that I should go to college.

Because the bus trips had been rough, I borrowed money from my cousin to get back to Boston by train. I got off at Back Bay Station and took a cab back to our apartment in Roxbury. The short trip was somewhat depressing after three months of598848 staying in much more attractive places. But I was glad to be back with my loving and supportive family and relating my experiences. I was not going to join the Army. I was going to college.

they only applied a few times anyway (the litigants in Romer, e.g., relied on it, but they decided it on other grounds). The justices overall even seemed to agree that the appellate court wasn't totally wrong -- they applied precedent, but the plurality decided the precedent itself was too broadly phrased. www.phoenixlol.com英雄联盟皮肤fifa 14 coinsfifa.mmo18.com